F. Bona Fide Occupational Qualifications

Frequency: ★★★★☆

1. CONCEPT

Employment in particular jobs may not be limited to persons of a particular sex, religion, or national origin unless the employer can show that sex, religion, or national origin is an actual qualification for performing the job. The qualification is called a bona fide occupational qualification (BFOQ). (Yrasuegi v. Philippine Airlines, Inc., G.R. No. 168081, 17 October 2008)

a. Legal basis

The Constitution, the Labor Code, and RA No. 727761 or the Magna Carta for Disabled Persons contain provisions similar to BFOQ. (Ibid.)

b. Test of reasonableness

In order to justify a BFOQ, the employer must prove that (1) the employment qualification is reasonably related to the essential operation of the job involved; and (2) that there is factual basis for believing that all or substantially all persons meeting the qualification would be unable to properly perform the duties of the job. (Ibid.)

In short, the test of reasonableness of the company policy is used because it is parallel to BFOQ. BFOQ is valid “provided it reflects an inherent quality reasonably necessary for satisfactory job performance.” (Ibid.)

2. CASE LAW

a. Weight requirement for flight stewards

Yrasuegi v. Philippine Airlines, Inc. (October 2008)
Weight maintenance requirement by an airline on flight stewards is a valid BFOQ. (Ibid.)
The primary objective of an airline in the imposition of the weight standards for cabin crew is flight safety. It cannot be gainsaid that cabin attendants must maintain agility at all times in order to inspire passenger confidence on their ability to care for the passengers when something goes wrong. It is not farfetched to say that airline companies, just like all common carriers, thrive due to public confidence on their safety records. People, especially the riding public, expect no less than that airline companies transport their passengers to their respective destinations safely and soundly. A lesser performance is unacceptable. (Ibid.)
The task of a cabin crew or flight attendant is not limited to serving meals or attending to the whims and caprices of the passengers. The most important activity of the cabin crew is to care for the safety of passengers and the evacuation of the aircraft when an emergency occurs. Passenger safety goes to the core of the job of a cabin attendant. Truly, airlines need cabin attendants who have the necessary strength to open emergency doors, the agility to attend to passengers in cramped working conditions, and the stamina to withstand grueling flight schedules.
On board an aircraft, the body weight and size of a cabin attendant are important factors to consider in case of emergency. Aircrafts have constricted cabin space, and narrow aisles and exit doors.
In short, there is no need to individually evaluate their ability to perform their task. That an obese cabin attendant occupies more space than a slim one is an unquestionable fact which courts can judicially recognize without introduction of evidence. It would also be absurd to require airline companies to reconfigure the aircraft in order to widen the aisles and exit doors just to accommodate overweight cabin attendants like petitioner.
The biggest problem with an overweight cabin attendant is the possibility of impeding passengers from evacuating the aircraft, should the occasion call for it. The job of a cabin attendant during emergencies is to speedily get the passengers out of the aircraft safely. Being overweight necessarily impedes mobility. Indeed, in an emergency situation, seconds are what cabin attendants are dealing with, not minutes. Three lost seconds can translate into three lost lives. Evacuation might slow down just because a wide-bodied cabin attendant is blocking the narrow aisles. These possibilities are not remote.

b. No marrying employees of competitors

Restriction against marrying employees of a competitor company is a valid BFOQ. (Duncan Association of Detailman-PTGWO v. Glaxo Wellcome Philippines, Inc., G.R. No. 162994, 17 September 2004, cited in Yrasuegi v. Philippine Airlines, Inc., supra.)

The concept of a bona fide occupational qualification is not foreign in our jurisdiction. We employ the standard of reasonableness of the company policy which is parallel to the bona fide occupational qualification requirement. In the recent case of Duncan Association of Detailman-PTGWO and Pedro Tecson v. Glaxo Wellcome Philippines, Inc., we passed on the validity of the policy of a pharmaceutical company prohibiting its employees from marrying employees of any competitor company. We held that Glaxo has a right to guard its trade secrets, manufacturing formulas, marketing strategies and other confidential programs and information from competitors. We considered the prohibition against personal or marital relationships with employees of competitor companies upon Glaxo’s employees reasonable under the circumstances because relationships of that nature might compromise the interests of Glaxo. In laying down the assailed company policy, we recognized that Glaxo only aims to protect its interests against the possibility that a competitor company will gain access to its secrets and procedures. (Star Paper Corporation v. Simbol, G.R. No. 164774, 12 April 2006)

For more discussions, see below Part H. Marriage between employees of competitor-employers.

c. No-spouse, no marriage policy

While a marriage or no-marriage qualification may be justified as a “bona fide occupational qualification,” the Brent (a college) must prove two factors necessitating its imposition, viz: (1) that the employment qualification is reasonably related to the essential operation of the job involved; and (2) that there is a factual basis for believing that all or substantially all persons meeting the qualification would be unable to properly perform the duties of the job. Brent has not shown the presence of neither of these factors. Perforce, the Court cannot uphold the validity of said condition. (Capin-Cadiz v. Bent Hospital and Colleges, Inc., G.R. No. 187417, 24 February 2016)

A requirement that a woman employee must remain unmarried could be justified as a “bona fide occupational qualification,” or BFOQ, where the particular requirements of the job would justify the same, but not on the ground of a general principle, such as the desirability of spreading work in the workplace. A requirement of that nature would be valid provided it reflects an inherent quality reasonably necessary for satisfactory job performance. Thus, in one case, a no-marriage rule applicable to both male and female flight attendants, was regarded as unlawful since the restriction was not related to the job performance of the flight attendants. (Philippine Telegraph and Telephone Company v. NLRC, De Guzman, G.R. No. 118978, 23 May 1997)

d. Age limitation

It shall not be unlawful for an employer to set age limitations in employment if: (a) Age is a bona fide occupational qualification reasonably necessary in the normal operation of a particular business or where the differentiation is based on reasonable factors other than age; (b) The intent is to observe the terms of a bona fide seniority system that is not intended to evade the purpose of this Act; (c) The intent is to observe the terms of a bona fide employee retirement or a voluntary early retirement plan consistent with the purpose of this Act: Provided, That such retirement or voluntary retirement plan is in accordance with the Labor Code, as amended, and other related laws; or (d) The action is duly certified by the Secretary of Labor and Employment in accordance with the purpose of the Anti-Age Discrimination Law. (Section 6, R.A. 10911, Anti-Age Discrimination Law)

•••••

BAR EXAM QUESTION

(Question A.1[c], Part I, Labor Law, 2019 Bar Exam)

Define, explain or distinguish the following terms:

(d) Bona fide occupational qualifications (2%)

SUGGESTED ANSWER:

Employment in particular jobs may not be limited to persons of a particular sex, religion, or national origin unless the employer can show that sex, religion, or national origin is an actual qualification for performing the job. The qualification is called a bona fide occupational qualification (BFOQ).

•••••

Disclaimer: All information herein is for educational and general information only intended for those preparing for the bar exam. These should not be taken as professional legal advice or opinion. Please consult a competent lawyer to address your specific concerns. Any statements or opinions of the author are solely his own and do not reflect that of any organization he may be connected.

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